Lamont, R. v

A criminal trial should be stayed for abuse of process only in exceptional circumstances. Where the prosecution has acted in bad faith or serious default, a stay may be required irrespective of trial fairness. Otherwise, a stay requires serious prejudice such that a fair trial cannot be guaranteed; directions to the jury will usually address the consequences of missing evidence.

Even without a prosecutorial breach, the absence of evidence may exceptionally make a trial unfair under Article 6. The court must assess the evidence's real significance, rather than speculate that it would have assisted the defendant merely because he requested it.

The appellant was convicted at the Crown Court at Cambridge of raping CS in 2002, and received an extended sentence. The prosecution was not commenced until allegations by a second complainant were made years later.

He appealed against the safety of the rape conviction. He contended that the police's 2002 failure to obtain telephone records and promptly secure a statement from Wayne Rowe deprived him of a fair trial and required a stay for abuse of process. He also challenged the adequacy of the summing-up and the jury's use of evidence relating to allegations by the second complainant.

1. Appeal dismissed. The judge was entitled to refuse a stay. The governing framework was that set out in R (Ebrahim) v Feltham Magistrates' Court [2001] 1 WLR 1293. Bad faith or serious default may justify a stay without further inquiry into trial fairness. In the ordinary case, however, a stay requires serious prejudice such that a fair trial cannot be guaranteed, and an appropriate jury direction will usually suffice.

2. The court had reservations about the proposition that, absent a prosecutorial breach of duty, a stay can never arise. Even where no one is at fault, Article 6 may require a stay if missing evidence makes the trial unfair. Such cases will be rare.

3. The missing telephone material might have assisted either side. It did not go to the heart of whether intercourse occurred or was consensual. The appellant's request that the material be obtained did not establish that it would have supported his account. There was sufficient potentially credible evidence, including CS's account and evidence of her immediate complaint, for the case to proceed fairly.

4. The summing-up adequately instructed the jury to take any disadvantage from the unavailable records into the appellant's favour when assessing whether guilt had been proved. The jury had also been correctly directed that they could use one rape allegation in considering another only if the jury as a body were sure of that allegation. There was no basis to suppose that the jury had failed to consider each count separately.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction: [2010] EWCA Crim 2144.

• Crown Court at Cambridge: on 17 July 2009, following a jury trial, convicted the appellant of rape, assault occasioning actual bodily harm, and false imprisonment. An extended sentence was imposed for the rape conviction.